Citation Nr: 0840397
Decision Date: 11/24/08 Archive Date: 12/03/08
DOCKET NO. 06-00 584 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for fatigue, to include as
a qualifying chronic disability under 38 C.F.R. § 3.317.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Gina E. Fenice, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1972 to January
1995, to include service in the Southwest Asia theater of
operations from December 1990 to May 1991.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of an August 2004 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
Jurisdiction over the case was subsequently transferred to
the RO in Winston-Salem, North Carolina.
FINDING OF FACT
The veteran does not have chronic fatigue or chronic fatigue
syndrome.
CONCLUSION OF LAW
A disability manifested by fatigue was not incurred in or
aggravated by active duty nor may such incurrence or
aggravation be presumed. 38 U.S.C.A. §§ 1110, 1117, 1131
(West 2002); 38 C.F.R. §§ 3.303, 3.317 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2007), and the pertinent implementing regulation,
codified at 38 C.F.R. § 3.159 (2007), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. Although the regulation previously
required VA to request that the claimant provide any evidence
in the claimant's possession that pertains to the claim, the
regulation has been amended to eliminate that requirement for
claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121.
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
In the case at hand, the record reflects that the originating
agency provided the veteran with the notice required under
the VCAA, by letter mailed in May 2004, prior to its initial
adjudication of the claim. Although the veteran was not
provided notice with respect to the disability-rating or
effective-date element of the claim until after the initial
adjudication of the claim, the Board finds that there is no
prejudice to him in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
As explained below, the Board has determined that service
connection is not warranted for the claimed disability.
Consequently, no disability rating or effective date will be
assigned, so the failure to provide earlier notice with
respect to those elements of the claim is no more than
harmless error.
The Board also notes that the veteran has been afforded
appropriate VA examinations and service treatment records and
pertinent VA medical records have been obtained. Neither the
veteran nor his representative has identified any outstanding
evidence, to include medical records, that could be obtained
to substantiate the claim. The Board is also unaware of any
such outstanding evidence.
In sum, the Board is satisfied that any procedural errors in
the originating agency's development and consideration of the
claim were insignificant and non prejudicial to the veteran.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131.
Service connection may be granted for any disease initially
diagnosed after service, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be granted to a Persian Gulf veteran
who exhibits objective indications of a qualifying chronic
disability resulting from an undiagnosed illness, or from a
medically unexplained chronic multisymptom illness that is
defined by a cluster of signs or symptoms (such as chronic
fatigue syndrome, fibromyalgia, and irritable bowel
syndrome), or resulting from an illness or combination of
illnesses manifested by one or more signs or symptoms such as
those listed below, or from any diagnosed illness which the
Secretary determines in regulations prescribed under 38
U.S.C. § 1117(d) warrants a presumption of service
connection. The symptoms must be manifest to a degree of 10
percent or more not later than December 31, 2011. By
history, physical examination and laboratory tests, the
disability cannot be attributed to any known clinical
diagnosis. Objective indications of chronic disability
include both "signs" in the medical sense of objective
evidence perceptible to an examining physician, and other,
non-medical indicators that are capable of independent
verification. Disabilities that have existed for 6 months or
more and disabilities that exhibit intermittent episodes of
improvement and worsening over a 6-month period will be
considered chronic.
The signs and symptoms which may be manifestations of
undiagnosed illness or a medically unexplained chronic
multisymptom illness include, but are not limited to: (1)
fatigue, (2) signs or symptoms involving the skin, (3)
headaches, (4) muscle pain, (5) joint pain, (6) neurologic
signs or symptoms, (7) neuropsychological signs or symptoms,
(8) signs or symptoms involving the respiratory system (upper
or lower), (9) sleep disturbance, (10) gastrointestinal signs
or symptoms, (11) cardiovascular signs or symptoms, (12)
abnormal weight loss, or (13) menstrual disorders. 38
U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.
Compensation shall not be paid: (1) if there is affirmative
evidence that an undiagnosed illness was not incurred during
active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War; or (2) if
there is affirmative evidence that an undiagnosed illness was
caused by a supervening condition or event that occurred
between the veteran's most recent departure from active duty
in the Southwest Asia theater of operations during the
Persian Gulf War and the onset of the illness; or (3) if
there is affirmative evidence that the illness is the result
of the veteran's own willful misconduct or the abuse of
alcohol or drugs. 38 C.F.R. § 3.317.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
The veteran contends that he incurred chronic fatigue
syndrome as a result of his active service in the Persian
Gulf.
The record reflects that the veteran served in Southwest Asia
during the Persian Gulf War and, therefore, qualifies as a
"Persian Gulf veteran." The record also reflects, however,
that the veteran does not have a "medically unexplained
chronic multisymptom illness" as described in
§ 3.317(a)(2)(B). During a July 2004 VA examination, the
veteran reported to the examiner that the onset of his
fatigue was about 3 to 5 years ago, and that he experiences
diffuse muscle aches and headaches approximately twice a
month, as well as impaired concentration. The examiner
concluded that the veteran did not have chronic fatigue
syndrome because the veteran does not have debilitating
fatigue or constant flu-like symptoms, there is no impairment
of daily activities, and lab work-up is essentially normal.
Thus, objective medical evidence does not support a diagnosis
of chronic fatigue syndrome as a medically unexplained
chronic illness.
Moreover, objective medical evidence does not support the
veteran's claim of fatigue as an "undiagnosed illness"
under § 3.317(a)(2)(A). The July 2004 examination notes that
the veteran experiences no functional impairment due to his
headaches, there is no specific muscle ache or weakness, the
veteran does not experience sleep disturbance, and there is
no migratory joint pain. Additionally, it was noted that
routine activities are not impaired by the veteran's fatigue,
nor are there any restrictions on his job, and the veteran
has not experienced any incapacitating episodes. Thus, not
only is the veteran not diagnosed with chronic fatigue
syndrome, there is no objective evidence of a chronic fatigue
disability to support a claim for fatigue as an undiagnosed
illness.
Finally, the veteran is also not entitled to service
connection on a presumptive basis because his fatigue has not
become manifest to a degree of 10 percent or more, as
contemplated by § 3.317(a)(1)(i). The veteran's fatigue may
be analyzed under the rating criteria for chronic fatigue
syndrome because "the functions affected, anatomical
localization, or symptomatology are similar." See 38 C.F.R.
§ 3.317(a)(5). Under Diagnostic Code 6354, a 10 percent
evaluation is warranted for fatigue symptoms which wax and
wane but result in periods of incapacitation of at least one
but less than two weeks total duration per year, or symptoms
controlled by continuous medication. 38 C.F.R. § 4.88b
(2008). A note to this code provides that the condition will
be considered incapacitating only when it requires bed rest
and treatment by a physician. In the veteran's case, the
record does not support a 10 percent evaluation for chronic
fatigue syndrome. There is no evidence showing that the
veteran has been prescribed bed rest because of fatigue or
that he requires medication to control the condition. Given
also that the July 2004 examiner stated that the veteran's
fatigue is non-debilitating and there is no impairment of
daily activities, there is no medical evidence or objectively
verifiable indicators to support a 10 percent disability
rating. Therefore, presumptive service connection is not
warranted under § 3.317(a)(1)(i).
When a veteran is found not to be entitled to a regulatory
presumption of service connection for a given disability, the
claim must nevertheless be reviewed to determine whether
service connection can be established on a direct basis. See
Combee v. Principi, 4 Vet. App. 78 (1993). Therefore, the
Board must consider whether the veteran is entitled to
service connection for chronic fatigue under the traditional
criteria for service connection.
The veteran's service treatment records do not show that the
veteran was found to have any chronic disorder related to
fatigue. These records only contain a few references to
"weakness" or "general malaise," generally associated with
colds, sore throats, and similar illnesses, but do not note
any continuous or chronic fatigue problem. The service
separation examination showed no abnormality with regard to
chronic fatigue, though the veteran did report swollen and
painful joints and headaches at this time. As stated above,
in July 2004, the examiner concluded the veteran did not meet
the criteria for a diagnosis of chronic fatigue syndrome.
The Board notes that in April 2004, the VA examiner noted an
"impression" of chronic fatigue syndrome. However, the
examiner did not give a basis for this impression, or note
any medical reasoning in support outside of the veteran's own
statements to the effect that he experiences fatigue.
Therefore, the Board finds this opinion unpersuasive in
establishing the veteran's service-connection claim.
See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998)
(noting that in assessing medical opinions, the failure of
the physician to provide a basis for his opinion goes to the
weight or credibility of the evidence in the adjudication of
the merits).
In essence, the evidence linking any current fatigue disorder
to service or an undiagnosed illness is limited to the
veteran's own statements regarding the fatigue, lack of
energy, and weakness he experiences. Medical evidence is
generally required to establish a medical diagnosis or to
address questions of medical causation; lay assertions of
medical status do not constitute competent medical evidence
for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).
Accordingly, the Board must conclude that service connection
is not warranted for the claimed disability. In reaching
this decision, the Board has determined that
application of the evidentiary equipoise rule is not required
because the preponderance of the evidence is against the
claims.
ORDER
Entitlement to service connection for chronic fatigue, to
include as a qualifying chronic disability under 38 C.F.R. §
3.317, is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs